The full text of Scottish Government policy on compassionate release has not however, I think, been made public. Thanks to a correspondent who sent me a copy of this, it is now published on this site. It is much fuller than the summary of the policy in the Justice Secretary’s statement, though I emphasise that the summary was fair and accurate.

As a comparison, there are similar provisions in England. The English policy is published here and is pretty much the same as ours; see part 12. It’s made under section 30 of the Crime (Sentences) Act 1997.

In each case, these are the totalities of the policies to be applied. There have been at least two legal challenges by prisoners in England (none that I know of in this country though) to a failure to release; R v Home Secretary ex parte Spinks [2005] EWCA Civ 275 and R v Minister for Justice ex parte AS, [2009] EWHC 1315 (Admin). Both were unsuccessful, because the minister had faithfully applied the policy to the facts. In Spinks, paragraph 16, it was pointed out that UK Government policy was to apply the published policy in all cases; there were no hidden exceptions. The decision in Spinks is encapsulated in this passage:

51. The Secretary of State is required to consider whether there are “exceptional circumstances” and “compassionate grounds”. The written Parliamentary answer of 15 February 1999 states the criteria which the Secretary of State uses in all cases. It is not suggested that these are inappropriate criteria or that they are incomplete. They include relevantly that the prisoner is suffering from a terminal illness and that death is likely to occur soon and that the risk of re-offending is past. Addressing “exceptional circumstances” and “compassionate grounds” against these and the other criteria necessarily demands a judgment of balance. It is for the Secretary of State to evaluate that balance. Where, as here, the Secretary of State has clearly given detailed consideration to Mr Spinks’ condition in the context of possible release, the court would not require the Secretary of State, by whatever particular order, to take the matter further unless the court concluded that the Secretary of State’s balance evaluation was plainly wrong.
52. There has to be added to this analysis consideration of Article 3 of the Human Rights Convention. If Mr Spinks’ continued detention amounted to a breach of Article 3, the Secretary of State would be obliged to take steps to stop the breach. It may be possible to stop the breach by means other than releasing the prisoner. If the only way of stopping the breach was to release the prisoner, the Secretary of State would be obliged to permit release. In the context of Section 30 of the 1997 Act, this may be seen as meaning that, if there is a breach of Article 3 and the only way to stop the breach is to release the prisoner, the balance of “exceptional circumstances” and “compassionate grounds” has to fall in favour of release.

The European Convention of Human Rights is also relevant, as the English Appeal Court pointed out in Spinks, particularly because the scheme of Scottish devolution is of course that the Scottish Government has no legal power to act in breach of the Convention. In one recent case, Aleksanyan v Russia, [2008] ECHR 1745, the European Court summed up the caselaw thus:

136. The Court often faces allegations of insufficient or inadequate medical care in places of detention. In exceptional circumstances, Article 3 may go as far as requiring the conditional liberation of a prisoner who is seriously ill or disabled. Thus, in Farbtuhs v. Latvia, (no. 4672/02, 2 December 2004), the Court concluded that the detention of a disabled 79-year-old applicant was in breach of Article 3 on account of “his age, infirmity and health situation” (see also Papon v. France (no. 1) (dec.), no. 64666/01, ECHR 2001-VI, and Priebke v. Italy (dec.), no. 48799/99, 5 April 2001).
137. In deciding whether or not the detention of a seriously ill person raised an issue under Article 3 of the Convention, the Court has taken into account various factors. Thus, in Mouisel v. France1, no. 67263/01, §§ 40-42, ECHR 2002 IX) the Court examined such elements of the case as (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention and (c) the advisability of maintaining the detention measure in view of the state of health of the applicant.

Thus, on the published facts of Megrahi’s case, had the Scottish Government refused to allow compassionate release in terms of a policy which had been applied by it and its Lib-Lab predecessors, and before them by Labour and Conservative Secretaries of State alike, it would have been open to legal challenge with excellent prospects of success (see, for discussion and expansion of this statement, comment below by FP Heur and my reply). That’s the way the law works; it doesn’t suddenly cease to operate because the person claiming its benefits is criminal, or a foreigner, or because release is politically undesirable. Still less because of the improbable suggestion that Americans will boycott Scotland and all its works if Scots law is applied impartially and judicially.

As another comparison, French law has since the law of 4 March 2002 (Code of Criminal Procedure, Article 720.1.1) provided for compassionate release “regardless of the nature of the sentence or the portion remaining to be served … where it has been established that the prisoner has a life-threatening illness or that his or her state of health is incompatible in the long term with continued detention, save in cases where persons detained in a psychiatric institution are admitted to hospital.” This, incidentally, followed a Report by the National Assembly which had criticised the failure to release the terminally ill in language equally true in Scotland, saying this:

The presence of [the very ill] in prison raises the very real issue of their dying there. Warders and other inmates are not prepared for that eventuality and no proper arrangements are in place for assisting prisoners in their final moments. Dying in prison means experiencing a feeling of hopeless solitude. It amounts to an admission of failure and waste for families unable to be present as the end approaches.

All prison staff try, wherever possible, to transfer inmates to hospital in their final days; however, this again raises the issue of escort officers and the difficulty of calling on the services of the police or the gendarmerie. Mention has also frequently been made of the attitude of doctors, who all too often send patients back to prison once the alert is over, just as easily as though they were returning home. One case in Caen where a doctor sent the patient back to prison only for him to die two days later seems to have had a particularly profound effect on prison staff.

There is no dignity in dying in prison. The question therefore arises whether the sick or the elderly should continue to be detained.

This approach to compassionate release is not unusual worldwide.

The Committee of Ministers of the Council of Europe, effectively representing European governments as a whole, said this in 1998:

The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined.

But had the decision been to abrogate the law so that Megrahi would die in prison while Musa Kusa and Colonel Gaddafi himself are fawned on by Washington and London, that would, I think, have come to be seen as shameful.

Postscript

I’ve been reminded of the Appeal Court’s decision on Megrahi’s bail application in November 2008, [2008] HCJAC 68, when the Crown in opposing bail pointed out that compassionate release was an option for any convicted prisoner. Apparently the policy document was produced and referred to. The Court said this:

[11] The Scottish Ministers have a statutory power to release a serving prisoner on licence on compassionate grounds. Advice has been issued as to the exercise of that power. Broadly speaking, in the case of a prisoner suffering from a terminal illness, life expectancy of less than three months may be considered a condition appropriate to occasion early release. It is not suggested that the applicant presently meets that criterion.
[12] This court is not constrained by such considerations. It can take a much wider view of any compassionate considerations urged upon it. […]
[15] The discretion conferred on the Court to admit a convicted person to bail pending the determination of his appeal is widely expressed. The Court may, subject to certain provisions which are not applicable here, so admit such a person “if it thinks fit”. In the judgment of the Court the most significant factor in the applicant’s favour is the state of his health. The Court is unsurprised that, notwithstanding that grounds of appeal were lodged in December 2007, no application for bail was presented before now. Absent the recent diagnosis, the prospects of success of such an application would have been remote. The critical question, as the court sees it, is, against the background of the atrocity of which the applicant stands convicted, whether the applicant’s health, present and prospective, is such that the Court should on compassionate grounds now admit him to bail. On balance the Court is not persuaded, on the information before it, that it should. While the disease from which the appellant suffers is incurable and may cause his death, he is not at present suffering material pain or disability. The full services of the National Health Service are available to him, notwithstanding he is in custody. There is, it appears, no immediate prospect of serious deterioration in his condition. The prognosis for its development is at present uncertain. If he responds well to the course of palliative treatment which he has now started, his life expectancy may be in years. If he does not respond well, that expectancy may be less good. While recognising that the psychological burden of knowledge of an incurable fatal disease may be easier to bear in a family environment than in custody, the Court, having regard to the grave nature of the conviction and taking into account the fact that a reference has been made and the fact that the appeal process is likely to be protracted, is not persuaded that the stage has been reached when early release is appropriate. If the applicant does not respond well to the treatment he is undertaking and the prognosis becomes both more certain and poorer, a stage may then be reached when a different disposal is appropriate.

In Mouisel v France, the European Court of Human Rights held that the failure to release a prisoner who was seriously ill with leukaemia amounted to a violation of Article 3. [back]

14 comments published to “Compassionate release in Scotland: the actual policy and the law”

[…] Jonathan Mitchell QC >> Compassionate release in Scotland: the actual policy and the law http://www.jonathanmitchell.info/2009/09/02/compassionate-release-in-scotland-the-actual-policy-and-the-law – view page – cached The Scottish Government today released a fair amount of background documentation on the decision to grant compassionate release to Megrahi. There are still a number of documents which for one reason or another haven't been published, such as the representations made by the US government, for which the US Embassy refused permission. The full text of Scottish Government policy on compassionate release has not however, I think, been made public. Thanks to a correspondent who sent me a copy of this, it is now published on this site. — From the page […]

Thank you for compiling this information. It was frustrating as an American lawyer to encounter such a dearth of reporting on the applicable Scottish law relating to this decision.

However, I am unpersuaded by your post.

According to Section 3(1) of the relevant Act, the Minister may release the prisoner if satisfied that there are compassionate grounds which justify such release.

In determining whether there are compassionate grounds sufficient to justify a release, one of the factors to be considered is the nature of the offense for which the prisoner was convicted, as per Annex 1 of the Scottish Prisons Circular of June 2005.

The Spinks case you cite above states that, with respect to English law on compassionate release, the decision is ultimately a matter of judgment that is reserved to the Secretary of State, unless that judgment is “plainly wrong.”

So, the decision to release Megrahi was not compelled by Scottish law, but was in fact a matter of discretion on the part of the Minister, who weighed the value of compassionate release against, among other things, the nature of Megrahi’s offense. The analogous decisions in English addressing such similarly delegated discretion hold that, unless plainly wrong, the courts will not further intervene.

Far from being an impartial, almost mechanical, application of law, this was a discretionary application of vague criteria, by which reasonable persons could well have decided otherwise.

It is the judgment of the Minister with which so many across the world take issue. Scottish law, based on my understanding of the sources provided in your post, provides no shield, nor excuse, for the Minister’s decision. Indeed, that law emphatically exposes his judgment as the ultimate source of decision, and the appropriate subject of criticism.

And I assure you that his decision, seared into the memory of Americans and Britons by photographs of Megrahi’s welcome party, will not be forgotten.

@FP Heur: You raise important issues as to the extent of the discretionary power given to the Justice Secretary which deserve a fuller reply than I have the time to give ( I do have a day job!). You are certainly right to say that the decision was not a mechanical application of law but an exercise of judgment. I think however that the fundamental problem with a decision to refuse compassionate release would have been that many years of operation of the policy had probably (and I do not want to suggest that this is beyond argument) given applicants such as Megrahi a legitimate expectation which was enforceable in law. The ‘nature of the offence’, which you rightly identify as mentioned in Annex 1 as a relevant factor, seems never in fact to have been permitted to trump the factors identified in paragraph 4.1 of the policy such as terminal illness, as distinct to paragraph 4.2 cases. Once a case was recognised as checking off the 4.1 boxes, the prisoner got compassionate release. That was how it worked.

Both Scottish and English law have moved far in the last twenty years to recognition, as a ground of challenge to an essentially discretionary decision, of the proposition that the language of a policy, or indeed its actual operation, may give a person a right to complain that it is not being applied to them. The leading case is usually taken to be Coughlan, 1999 EWCA Civ 1871; see paragraphs 55 to 59 in particular. As a particularly striking example, I’d point to Rashid, 2005 EWCA Civ 744, where the Home Secretary was held to a policy although (a) he didn’t know he had such a policy and (b) the petitioner didn’t either (and yes, I know that sounds wrong, but it’s a fair summary). This has been applied in Scotland, e.g. AA, 2008 CSOH 83, which summed up Rashid as “inconsistent and therefore unlawful application of a policy“. I had a case a couple of months ago where the Home Secretary said “the language of my policy means X”; in itself, that was thoroughly arguable as the language was ambiguous, but on it being pointed out that the year before he had said it meant the opposite he put his hands up; he didn’t suggest that because it was his policy it meant whatever he said it did, but accepted that the inconsistency was necessarily unlawful; and he was right to surrender.

Had the Justice Secretary turned round last month and said “I know it’s never been the policy to allow the seriousness of the crime to trump terminal illness, but in reaction to this case I am changing that”, ex hypothesi retrospectively, he’d have been challenged by judicial review, and I repeat that I think the prospects of that challenge succeeding would in my opinion have been excellent.

I’m interested in how common compassionate release on the grounds of terminal illness is, in both Scotland and England. The figures you quote include short-term release. Do you also have more specific figures?

SECRETARY CLINTON: I am very pleased to welcome Minister Qadhafi here to the State Department. We deeply value the relationship between the United States and Libya. We have many opportunities to deepen and broaden our cooperation. And I’m very much looking forward to building on this relationship. So, Mr. Minister, welcome so much here.
NATIONAL SECURITY ADVISOR QADHAFI: Thank you.
SECRETARY CLINTON: Thank you. We’re delighted you’re here.
NATIONAL SECURITY ADVISOR QADHAFI: Thank you.
SECRETARY CLINTON: Thank you all very much.

On 12th Oct I have been invited to Dohar to debate and oppose the motion

‘This house deplores the return of the Lockerbie Bomber to Tripoli’

Incidentally I’m told the Doha debate will be broadcast on BBC World News:
on 24th Oct at 07.10, 15.10, 19.10 (GMT)
and 25th Oct at 00.10, 07.10, 15.10, and 20.10

I am much in tune with your comments re the compassionate release of Megrahi, and delighted that the poor guy is now at home with his much-loved family.

I strongly support his release and object to the casual use of the phrase ‘the Lockerbie bomber’. I am satisfied that he was not guilty as charged, and in view of the SCCRC findings, if nothing else, should be described at worst as ‘the man found guilty of the Lockerbie bombing’.

I would like to discuss the release issue with you if you can find the time, and it might well be that we would find some advantage in keeping in touch, specially as it begins to look as if the verdict may now have to be reviewed somehow, despite the withdrawal of his appeal.

For your interest, below is the text of what I said to MacAskill before the decision had been made.

Best wishes,

Jim Swire

Jim Swire, to Scottish Justice Secretary, Kenny MacAskill 1/7/09

Secretary,

The prisoner transfer agreement (PTA), which is among the subjects we will raise with you today was born in what the media have come to refer to as ‘the deal in the desert’ between Prime Minister Blair and Colonel Gaddafi.

We, relatives of some of those who died aboard the Maid of the Seas in 1988 come from a deeper darker desert of more than 20 years duration: the desert of loss in which we have searched for truth and justice. During those 20 years, time and again, we have been denied an inquiry by a whole succession of English Prime Ministers. Almost the only light to shine into that darkness has been those aspects of the truth which we have gleaned from study of the evidence led at Zeist. You will find us make common cause for the continuation therefore of the current appeal as being the only currently available vehicle for discovering more of that truth we crave, and to which we have an unalienable right.

I am grateful for the opportunity to put my personal views to you today, that is both a privilege and an honour. I know that within our group there is great hope that the current appeal will clear up the major doubts surrounding this verdict and throw some light on the truth we seek as to how our beloved families came to be unprotected, and whose was the hand that slew them. But today my plea is an individual one from the heart.

You have the great responsibility of deciding how to balance the needs of Scotland, her criminal justice system and her people, against what shall be the impact upon the prisoner Baset Al Megrahi, who till now has always maintained his innocence and his desperation to clear his name.

You have the new procedure of the Prisoner Transfer agreement (PTA) to consider, and the knowledge that Baset is dying in his prison cell and that his presence there adds nothing to the judicial process, any more than his release could further endanger the public.

I may speak only for myself, but for you to take any step that would abort the current appeal would be anathema to me and I believe to many other UK relatives. I realise that for Baset’s present appeal to continue, is an expensive option in terms not only of money, resource allocation and their Lordships’ time, but also raises the possibility that the decisions made by some of Scotland’s most eminent judges at Zeist, and the behaviour of the Crown Office and Scottish police might be called into question should the appeal succeed. Such possibilities will lead to pressure upon you as you make your decision.

On the other hand, to allow the appeal to be abandoned would be a body blow to the international reputation of Scotland and to domestic confidence in our judicial system for a generation. I suggest that the decision to use the PTA and so stop the appeal would, in the longer term, be even more dearly bought than to allow the appeal to continue.

Immediately following the issue of indictments against the 2 Libyans I went to see Colonel Gaddafi to plead that he allow his 2 citizens to attend trial before a Scottish Court under what I believed to be one of the most distinguished and fairest systems of criminal justice of any country. After the intervention of a number of eminent people around the world, the Colonel agreed, and I remained in court throughout, to listen to all the evidence.

I found that far from underlining their guilt the evidence convinced me that the two were simply not guilty as charged. That view has been amplified since by the spectacle of a number of international observers and jurists adding to a flood of public criticism about the lack of fairness of the trial, and by new evidence coming to light, especially that concerning the Heathrow break-in.

But we must look closer to home within our own Scottish borders for the most significant criticism of the trial process: to the SCCRC. As you know sir, they found that, partly on account of a failure by the Crown to share evidential material with the defence, there was a significant risk that a miscarriage of justice might have occurred. Hence the current appeal.

We are the inheritors of a justice system of which our great nation, Scotland, has been the proud protector for centuries, and over which you now have great influence. Faced with the spectre that Zeist may have been a miscarriage of justice by that great system, during what is arguably the most significant case it has ever handled, I feel sure that you will want to ensure that the name of Scotland and her justice emerge at the bar of history vindicated. For that to be evident to the historians of the future, our judicial system needs to be seen to have reacted responsibly from within its own resources to the challenge which this case has presented.

The SCCRC findings were but a first step in such a process of self examination. To continue that process we need to see our best legal minds re-evaluating the evidence, both original and new, to decide whether this verdict should stand. That seems to demand the continuation of the present appeal.

The news that there had been a break-in at Heathrow airport on the early morning of the disaster, and that information about it had remained unknown till after Baset had been found guilty, has led me to write personally to Elish Angiolini our current Lord Advocate, as a vital member of the existing Scottish justice system to ask her to do three things:-

1.) To discover whether the Crown Office had evidence of the break-in during the 12 years that it had remained hidden.

2.) If no such evidence could be found, to show why it had not been passed to the Crown Office by those who must have discovered it during their conduct of the criminal investigation.

3.) To consider whether a fresh Fatal Accident Inquiry(FAI) should be initiated in view of the misdirection given to the original one namely that the court was to presume that the explosive device must have come from Frankfurt.

It must be clear to any objective observer that the absence of this information influenced the fairness of the Zeist trial, and rendered the FAI unable to examine all factors which might have contributed to the deaths. The absence of an explanation for its having lain unmentioned for 12 years has led to grave accusations against the Crown Office by one of the UN’s appointed observers, Prof Hans Koechler, and no doubt these matters will be faced up to if the appeal continues.

My letter to the Lord Advocate of 5th June this year remains acknowledged, but as yet unanswered.

In a letter to our group’s co-ordinator, Jean Berkley, and dated 19th June this year, Jack Straw, your opposite number at Westminster wrote “As the (PTA) was the first …. to provide for the transfer of a prisoner without his or her consent… the Joint Committee on Human Rights requested additional time to consider the human rights implications of this….” Jack Straw then refused to allow that committee the full time that they had asked for, to consider those Human Rights implications.

You, Sir, however under the provisions of the PTA have at least 90 days from the date of the Libyan government application, to consider the balance between the prisoner’s rights, the needs of the Scottish public to have faith in their criminal justice system and the needs of the relatives of all nationalities to know the truth about who murdered our family members, and why they were not prevented from doing so.

I think that the eyes of those proud Scots who gave the world the Enlightenment and guarded our legal system so well will be upon your decision.

To use the PTA would be to stop the second appeal and would cost our country the best chance of showing that it can objectively assess its own past performance and if necessary be brave enough to correct it from within, even in the face of gross international pressures.

It would also grievously damage the search by innocent relatives for the truth concerning the murders of their dear families.

You have, Sir, an alternative which again appears similarly to carry no legally enshrined requirement on the part of the prisoner to initiate its use. That would be to grant him Compassionate Release (CR). The decision to do that could include provision to return him home just as soon as the PTA could, but without compromising the ongoing second appeal.

I began by pointing to Baset’s position, he has always maintained to me that he is innocent but that he did not wish to return home to his beloved family until his name, and that of his family for the future had been cleared. I acknowledge that for you the responsibility for resurrecting the good name of Scottish justice through the continuation of this appeal is a far greater issue than the needs of an individual convicted prisoner.

But I am here simply as a father who is determined to find out who murdered his daughter and why they were not prevented from doing so. I have a right to know these things, but as an individual I have never sought revenge, for vengeance must remain in the hands of a far greater Power than you or I Sir. Thus I have applauded the easing of the enmity between Libya and Britain, but I have also empathised with the fate of one man, now dying, and his family, whose continuing torturous separation serves no purpose in the administration of justice, beyond being a means of reducing the cries of outrage raised by those who set aside the precepts of human kindness.

Use of Compassionate Release(CR) would allow Baset home knowing that review of his case could continue. It would gloriously fulfil the Christian exhortation ‘love thine enemy’ for many I know regard Baset as such.

Use of CR would also mean that those innocent relatives who seek the truth and desperately hope therefore that the appeal can continue and reveal more of that truth would get their wish.

We or our descendents will be around to see how history judges the great decision which it falls upon you, Sir, to make.

I wish you wisdom, integrity and human kindness in making that weighty decision.

Dr Jim Swire, Father of Flora age 23, one of 270 people killed at Lockerbie 21/12/88.

[Since this was written the Crown Office have replied. Interestingly they both claim that they didn’t know about Heathrow and claim that the Heathrow material wouldn’t have made any difference had it been known to the trial court: amazing.]

Hello,
I am a law student at The George Washington University Law School in Washington D.C. and I am writing an International Law Review Article about the Scottish compassionate release law, emphasizing the Lockerbie Trial and the eventual release of the prisoner. Are there any other examples in Scotland where compassionate release has been granted or denied? If compassionate release is denied by the Ministers, are there any appeals processes for the courts to get involved in? Also, are there any other articles like this that discuss generally and simply the criminal justice system in Scotland now after devolution from UK, like generally what criminal areas Scotland has control of and what criminal justice matters are delegated to English courts/criminal justice system? This was a fantastic article and I am wondering where can I find more like this one right now? Thanks very much for all your effort and help!

On 24 October The Scotsman newspaper carried a story detailing all the prisoner compassionate release cases since the beginning of devolution in Scotland – 25 altogether. The Scotsman’s line was that Megrahi had already outlived five in terms of the numbers of days survived after release. For me, there were other points of interest. All of those released bar Megrahi and one other released on 18 September 2009 are dead. Three of those released apart from Megrahi had been convicted of murder. Seven were released by Lord Wallace, eleven by Cathy Jamieson and so far seven by Kenny MacAskill. (Six prisoners were released on compassionate grounds between 1993 and 1997 (when, if you remember, we had a Conservative Government and a Secretary of State for Scotland actually running things.) Seventeen of the post-1999 releases were because the prisoners in question had cancer. The longest liver lasted 271 days after release: other relatively lengthy survivals included periods of 182, 173, 168, 119 and (twice) 98 days (all therefore somewhat in excess of the three-month period mentioned in the Scottish Government policy guidelines on the subject). All but one of these relatively long survivors had cancer; the exception had AIDS.

[…] release was in accordance with Scottish principles of compassion and according to Scots law (see discussion here): he was going to die. He was not considered a threat. Once released, he could not be held in […]

[…] grandstanding or "playing politics" with the decision. Furthermore, there are at least some grounds for thinking that, since Megrahi satisfied the eligibility criteria for compassionate release, […]